Discipline hearing for Black judge is troubling

Talk of “gun crimes” and “murder rate” and “bloodiest year” filled chat rooms and talk shows and blogs and newspaper front pages last week as Toronto recorded the most murders in a year, ever. But there is no crisis. Really. Humans act in a crisis. We declare an emergency and change protocols and institute changes targeted at the source of the epidemic. SARS was a crisis. The threat of infection changed behaviour.

Today, rubber gloves and hand sanitizers are more visible than gauzes and medicine at your local hospital and doctor’s office.

Viewed through that lens, gun play among disaffected young Black men involved in a disproportionate number of shootings is not a crisis. Not yet. We like to talk when we should act. We throw around words like crisis and epidemic while we live in routine indifference to the real outcomes on the street. Because, really, it doesn’t impact our lives and a significant enough number of our loved ones.

What’s happening to Justice Donald McLeod of the Ontario Court of Justice underscores this. The Ontario Judicial Council, which governs judges’ behaviour, is threatening to suspend, discipline him and/or recommend he be

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fired. The hearing is Friday in Toronto.

It’s being called because another judge complained that in convening and guiding the Federation of Black Canadians, a 2-year-old non-profit, nonpartisan group, Justice McLeod was un-judge-like. It’s nonsense. It’s serious. Just the fact the hearing is being held is a disheartening and disproportionately demeaning and troubling development.

The judge didn’t beat his wife or sexually assault women or criticize the judiciary or make intemperate remarks or besmirch the integrity of the bench or privately tell a reporter that the colonial construct on which Canada is based is reason enough for people of colour to rise up and overthrow the government.

No. He tried to help his people — a minority besieged with a toxic mix of anti-Black racism, centuries of poor educational outcomes that manifest themselves in huge dropout rates, underemployment, mental health breakdowns and an incarceration rate four times the national average.

In June 2016, he invited a number of “concerned” Black folks — social workers, cops, teachers, bankers, civil servants, clergy, mental-health practitioners, journalists (I attended) to a meeting in Regent Park and the consensus was to draft a narrative that productively and powerfully lay out the problems, the institutional, clinical and social intersections that feed and disperse the generational dysfunctions. And offer some solutions.

Some 37 people attended. There might have been a few political operatives or wannabe politicians among the group. But who’s fussed? It takes all kinds. When you are drowning you don’t much care about who’s throwing you a lifeline. That consideration is a luxury for when you are hauled ashore.

The produced document, apparently, found some resonance with the federal Liberals, not so much with the Ontario Liberals. The 2018 federal budget contained $214 million to be spread across Canada to address issues highlighted in the report, with $42 million earmarked for the Black community.

None of this money or other government money goes to the FBC, which is more preoccupied with educating all political parties and governments and creating a national organization to address regional issues. As you can imagine, with the money, though a pittance, comes problems.

The crabs in the barrel started working overtime. Community leaders with years of advocacy under their belts felt insulted McLeod and the FBC did not consult them.

Others felt their issues were not on the table. Still others groused that their particular cause was not advocated for, so the FBC could not possibly be a legit grassroots and effective voice.

And who is this judge anyway, to think he can speak for Black people? He is a part of the system, they screamed. He is conflicted. He can’t speak truth to power when he is part of the power structure. Some called him, and the group, Uncle Toms and house Negroes.

An impartial, unbiased judge can’t speak to injustices without running afoul of the principles of his judicial office, which say: Judges must not participate in any partisan political activity; neither contribute to any political party. They must not abuse the power of their judicial office or use it inappropriately.

Most critically, “judges are encouraged to be involved in community activities provided such involvement is not incompatible with their judicial office.”

A conservative, restrictive reading of those clauses might lead a judge to conclude, as most of them do, that on becoming a judge, you should enter a kind of witness protection program and retire to splendid isolation from the community, rising only to sit on the bench and pronounce verdicts.

Justice McLeod knows this view. So, he exchanged several letters with the ethics committee outlining what he was doing with the FBC and getting feedback on where he might cross over the line guiding his actions.

The ethics committee clings to the narrative that the body merely advises and it does not clear a judge’s activities.

What is clear is the ethics committee unanimously did not express actionable concerns to McLeod until the crabs in the barrel started a controversy over his “advocacy.”

The irony is the community whiners are correct in that McLeod cannot, as a judge, properly advocate for community concerns. He can’t be strident and vocal and loud and incendiary enough to adequately reflect the trauma and turmoil and indignation that fuels the demands that must be made.

McLeod knows this and has not attempted to. He facilitated the start of the group, chairs the steering committee and intended to be the interim chair until the body established a constitution and a board of directors and a national mandate.

His mistake was in not getting out fast enough — before the initiative became sullied by the government grant — and the resulting jealousies and backbiting. And although he has resigned from roles that caused the filing of the complaint, somebody, it appears, is trying to cut him down to size.

The learned judges might peruse the bios of their peers to see how many of their number sit on boards and participate in activities that, exposed to the same internecine squabbles, might easily exceed the strict standards being applied to Justice McLeod. The hearing panel will be able to follow the correspondences between McLeod and the ethics committee.

If this is a fair hearing, one using the common judicial test of what a “reasonable, fair minded and informed person” would conclude about the judge’s behaviour, the verdict will exonerate the justice while urging even stricter avoidance of community involvement. The panel’s words and actions will be couched differently, of course. But that is the impact.

Justice McLeod grew up in Ontario housing in Regent Park and Scarborough in a single-parent home. Boys he ran with are long buried or in jail. He knows what it is like to turn on the oven and leave the door open to warm the apartment because of a backlog in repairs. He got out.

As a successful criminal defence lawyer, he took the frantic phone calls late at night from desperate moms looking to get their sons out of jail, armed only with legal aid. He defended one of the infamous Toronto 18 in the international terrorism case. He took on the establishment and argued racial profiling before the Supreme Court of Canada. He rubbed shoulders with O.J. Simpson’s lawyer Johnnie Cochran of the, “If it doesn’t fit, you must acquit.”

He was appointed a judge in 2013. He is as comfortable ordering a Jamaican patty at TinNel’s as he is a juicy sirloin in the fanciest restaurant. He can pluck down the deposit on a North Toronto mansion and has lived in the ghetto.

In short, he is exactly what we want as a judge — someone with life experiences that speak to the so-called crisis on the street.

In short, he is exactly want we want as an interpreter of Black community concerns. Rallies planned in Ottawa, Vancouver, Toronto and Alberta are expected to highlight this. A petition opposing the hearing has more than 4,000 signatures and rising.

Of course, there are many judges and many interpreters. And many Black folks who can speak their truth. McLeod gave us an organization that serves a valuable purpose — one filling an obvious void.

In majority communities, not much is lost by the muting of credible and informed and critical voices because there are so many more options and ways to collect and affirm the message.

In the Black community, the silencing will be deafening — despite the noise from the essential rabble in the streets.

Guns are not the only instruments of death in Toronto circa 2018; just the loudest.